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Decision No. 16,791

Appeal of EDWIN BURGOS, JR., on behalf of his daughter ASHLEY MARIE, from action of the Board of Education of the East Irondequoit Central School District regarding residency.

Decision No. 16,791

(July 20, 2015)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Miles G. Lawlor, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District (“respondent”) that his daughter, Ashley Marie (“Ashley”), is not a district resident.  The appeal must be dismissed.

During the 2014-2015 school year, Ashley was enrolled in respondent’s Eastridge High School as a district resident.  After questions arose about Ashley’s residency, respondent sought and received a parent affidavit from Ashley’s mother, who resides in Florida.  The parent affidavit, dated January 8, 2015, represented that Ashley began living with an aunt within the district (the “in-district address”) on December 23, 2014.  A custodial affidavit dated January 8, 2015, was submitted by the aunt and indicated that she did not have legal custody or guardianship of Ashley.  She also affirmed that Ashley’s father lived at an address outside of the district (the “out-of-district address”).  By letter dated January 15, 2015, the district registrar notified Ashley’s mother and aunt of her determination that there had not been a “permanent and complete transfer of control, responsibility and custodianship of Ashley” and, therefore, Ashley would not be permitted to register in respondent’s district.  The registrar stated that Ashley should be enrolled “in the district where [her] parent(s)/guardian(s) reside.”  That determination was not appealed.

Instead, petitioner, Ashley’s father, submitted a shared housing affidavit dated January 17, 2015, in which he stated that, as of January 15, 2015, he and Ashley lived with her aunt at the in-district address.  He further stated that he had previously lived at the out-of-district address.  Thereafter, respondent conducted surveillance at both addresses at various times of day on seven consecutive days from Tuesday, April 14, 2015, through Monday, April 20, 2015.

During the surveillance period, petitioner and his vehicle were observed at the in-district address on only two occasions; both times petitioner left the in-district address and drove to the out-of-district address.  Petitioner was observed at the out-of-district address taking out garbage, letting in a meter reader and looking through the mail.  Moreover, petitioner’s vehicle, which is registered to the out-of-district address, was observed at that address every day; often several times daily, as well as overnight.

By letter dated April 21, 2015, the district registrar notified petitioner that she had determined that he did not reside within the district and, therefore, Ashley would be excluded from the district on May 4, 2015.  On April 27, 2015, petitioner met with the assistant school business administrator and provided several letters and bills addressed to him and Ashley at the in-district address.  By letter dated April 28, 2015, the assistant school business administrator notified petitioner that, after considering the documentation he submitted and the district’s surveillance, she determined that petitioner is not a district resident and that Ashley would therefore not be allowed to attend school in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 13, 2015.

Petitioner contends that he and Ashley reside at the in-district address and, therefore, Ashley is entitled to attend respondent’s school.[1]  In support of his contention, petitioner submitted various documents listing the in-district address, including a bank statement, an auto insurance card, and a packing slip, as well as a letter from an insurance company and an insurance statement addressed to Ashley.

Respondent argues that petitioner has failed to establish that Ashley is a district resident and that its residency determination is not arbitrary or capricious, but is supported by the record.

Education Law §3202(1) provides, in pertinent part, as follows:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Petitioner alleges that Ashley resides with him at the in-district address along with her aunt.  As noted above, the surveillance report indicates that petitioner was seen at the in-district address on only two occasions during which he was observed driving to the out-of-district address.  Further, his vehicle was observed at the out-of-district address early in the morning on six of the seven surveillance days.  On three dates, petitioner was observed at the out-of-district address taking out garbage, letting in a meter reader, looking through the mail, and opening the door wearing an outfit and with unkempt hair that led the investigator to conclude that petitioner had just woken up. Additionally, petitioner’s vehicle is registered to him at the out-of-district address.  

Petitioner’s documentation submitted in support of his claim of residency in the district does not refute the district’s surveillance.  It consists of only five items – three statements addressed to him at the in-district address, a packing slip indicating that petitioner had a cell phone delivered to that address and an automobile insurance card that was effective only after petitioner’s residency was questioned.  Such documentary evidence is not dispositive where contrary surveillance evidence exists. (Appeal of Stewart, 47 Ed Dept Rep 92, Decision No. 15,637).  I note that petitioner provides no explanation for the surveillance evidence submitted by respondent.  Although the record is not extensive, I cannot conclude that petitioner has carried his burden of proof or that respondent’s decision was arbitrary, capricious, or unreasonable.[2]

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to the district on Ashley’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.




[1] As noted above, there was no challenge to the district’s earlier determination that custody and control of Ashley had not been transferred to her aunt.


[2] Petitioner’s claim in this appeal rests entirely on his assertion that Ashley resides with him.  The issue of Ashley’s custody as between her parents is not raised herein, is not before me and in any event, would not affect the outcome of this appeal inasmuch as Ashley’s mother resides outside of New York State.